RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        3 July 2007
      DOCKET NUMBER:  AR20070000045


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Ms. Catherine C. Mitrano          |     |Director             |
|     |Mr. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Eric N. Andersen              |     |Chairperson          |
|     |Mr. Scott W. Faught               |     |Member               |
|     |Ms. Ernestine R. Fields           |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his undesirable discharge (UD)
be upgraded.

2.  The applicant states, in effect, he wishes his discharge to be upgraded
in order to allow him to seek Federal employment and to gain eligibility
for health care benefits through the Department of Veterans Affairs (VA).

3.  The applicant provides no additional documentary evidence in support of
his application; however, he did submit an Application for the Review of
Discharge From the Armed Forces of the United States (DD Form 293) with his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 17 August 1971, the date of his separation.  The
application submitted in this case is dated 15 December 2006.

2.  Title 10, U.S. Code, Section 1552(b), provides that applications for
correction of military records must be filed within 3 years after discovery
of the alleged error or injustice.  This provision of law allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitations if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant's record shows that he enlisted in the Regular Army and
entered active duty on 31 January 1970.  He successfully completed basic
combat training at Fort Campbell, Kentucky and was assigned to Fort Polk,
Louisiana to attend advanced individual training in military occupational
specialty (MOS) 94B (Cook).

4.  The applicant's Enlisted Qualification Record (DA Form 20) shows, in
Item 33 (Appointments and Reductions) that he was advanced to private/E-2
(PV2) on
31 May 1970, and that this is the highest rank he attained while serving on
active duty.  Item 41 (Awards and Decorations) shows that during his active
duty tenure, he earned the National Defense Service Medal and Sharpshooter
Marksmanship Qualification Badge with Rifle Bar.  His record documents no
acts of valor, significant achievement, or service warranting special
recognition.
5.  On 5 March 1970, the applicant accepted non-judicial punishment (NJP)
under the provisions of Article 15 of the Uniform Code of Military Justice
(UCMJ) for disobeying a lawful order and for absenting himself from duty
without proper authority.  His punishment for these offenses was a
forfeiture of $26.00 and
14 days of restriction and extra duty.

6.  On 21 April 1970, the applicant accepted NJP for being absent from his
unit on 16 April 1970 and for assaulting another Soldier.  His punishment
for these offenses was a forfeiture of $57.00 per month for 2 months and 24
days of restriction and extra duty.

7.  On 3 March 1971, a Special Court-Martial (SPCM) found the applicant
guilty of violating Article 86 of the UCMJ by being AWOL from 5 July
through
13 October 1970 and from 24 October 1970 through 9 February 1971.  The
resultant sentence was confinement at hard labor for 60 days, a forfeiture
of $50.00 per month for 2 months, and reduction to private/E-1 (PV1).

8.  On 19 April 1971, the unit commander of the Correctional Holding
Detachment, Fort Leonard Wood, Missouri, notified the applicant of his
intent to process the applicant for discharge from the service under the
provisions of Army Regulation 635-212, by reason of unfitness based the
applicant's record of AWOLs.

9.  The applicant consulted with legal counsel and was advised of the basis
for the contemplate separation action, of the rights available to him and
of the effect of a waiver of those rights.  Subsequent to this counseling,
he waived his right to have his case considered by a board of officers and
to a personal appearance before a board of officers and he waived
representation by counsel.  He also elected to submit a statement in his
own behalf.  In his statement, he indicated, in pertinent part, that he
could no longer stay in the Army because his wife had no education.  He
requested a discharge under honorable conditions; however, indicted he
would accept an UD in order to get out and take care of his family.

10.  On 16 July 1971, the separation authority approved the applicant's
separation under the provisions of Army Regulation 635-212, by reason of
unfitness, and directed the applicant receive an UD.  On 17 August 1971,
the applicant was discharged accordingly.  The separation document (DD Form
214) he was issued at the time shows he completed a total of 8 months and 9
days of creditable active military service and that he accrued 312 days of
time lost due to being AWOL and in confinement.

11.  There is no indication that the applicant petitioned the Army
Discharge Review Board (ADRB) for an upgrade of his discharge within that
board's 15-year statute of limitations.

12.  Army Regulation 635-212, in effect at the time, set forth the basic
authority, established the policy, and prescribed the procedures for
separating members for unfitness.  An undesirable discharge was normally
considered appropriate for members separating under these provisions.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his UD should be upgraded in order to
allow him to seek Federal employment and to obtain VA medical benefits was
carefully considered.  However, there is an insufficient evidentiary basis
to support granting the requested relief.

2.  The applicant's record reveals an extensive disciplinary history that
includes his acceptance of NJP on two separate occasions, his conviction by
a SPCM, and his accrual of 312 days of time lost due to being AWOL and in
confinement.  The evidence of record confirms he was properly notified of
the contemplated separation action by his unit commander and that after
consulting legal counsel, he waived his right to have his case considered
by a board of officers, and that he submitted a statement in which he
indicated he could no longer serve in the Army due to his family situation.


3.  The evidence of record further confirms that the applicant's separation
processing was accomplished in accordance with the applicable regulation in
effect at the time.  All requirements of law and regulation were met and
the applicant’s rights were fully protected throughout the separation
process.  Finally, the record shows the applicant’s discharge accurately
reflects his overall record of undistinguished service.

4.  While the applicant's desire to improve his employment opportunities is
admirable and his desire to obtain VA medical benefits is understandable,
these factors alone are not sufficiently mitigating to support an upgrade
of his discharge at this late date.

5.  In order to justify correction of a military record the applicant must
show to the satisfaction of the Board, or it must otherwise satisfactorily
appear, that the record is in error or unjust.  The applicant has failed to
submit evidence that would satisfy this requirement.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 17 August 1971, the date of his
discharge.  Therefore, the time for him to file a request for correction of
any error or injustice expired on 16 August 1974.  He failed to file within
the 3-year statute of limitations and has not provided a compelling
explanation or evidence to show that it would be in the interest of justice
to excuse failure to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__ENA __  __SWF       ___EIF__  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented does not demonstrate
the existence of a probable error or injustice.  Therefore, the Board
determined that the overall merits of this case are insufficient as a basis
for correction of the records of the individual concerned.

2.  As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to excuse
the applicant's failure to timely file this application within the 3-year
statute of limitations prescribed by law.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.




                                  _____Eric N. Andersen ____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20070000045                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2007/07/03                              |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |1971/08/17                              |
|DISCHARGE AUTHORITY     |AR 635-212                              |
|DISCHARGE REASON        |Unfitness                               |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Ms. Mitrano                             |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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